In Lopez v. Guei Shun Shiau, the First Department affirmed a denial of summary judgment on the issue of contractual indemnity between the defendant as third-party plaintiff and the third-party defendant Sheba Ethiopian Restaurant, Inc. Defendant Guei Shun Shiau is an out of possession landlord in this negligence slip and fall on an uneven sidewalk. While Shiau argued that it was entitled to contractual indemnity, the court found that the contractual indemnity provision contained in the parties' lease agreement was “ambiguous” and the intention to indemnify was not "unmistakable." Therefore, summary judgment was not appropriate.
Thursday, October 27, 2011
Missing Document Charge Appropriate Sanction For Operative Report That May Never Have Been Created
In Krin v. Lenox Hill Hospital, the trial court granted a missing document charge in response to the plaintiff’s motion to strike on grounds of spoliation, and the First Department affirmed. In this medical malpractice action, the plaintiff complained that the defendants had failed to turn over a cosmetic operative report. The report at issue was allegedly dictated at some point, but it was not part of the file when records were disclosed. Considering the circumstances below and the conflict in the record as to whether such a document even existed, the First Department noted that a missing document charge was an appropriate sanction rather than striking defendant's answer.
First Department Splits Over Labor Law Liability Where Plaintiff Did Not Fall From a Height
In Reavely v. Yonkers Raceway Programs, Inc., the plaintiff alleged that violations of the Labor Law caused him to cut his fingers with a circular saw. The plaintiff had been instructed to cut plywood for a hang wall near a trench; his footing slipped on waterproofing that had not yet safely hardened. Although the plaintiff did not fall from the wall, he claimed that his injury was caused when he acted to prevent himself from falling.
Over a two-judge dissent, the First Department affirmed summary judgment in favor of the plaintiff under Labor Law § 240(1). The majority concluded that plaintiff was entitled to a safety device under the Labor Law and that the failure to provide one was the proximate cause of plaintiff’s injuries. By contrast, the dissent argued that the injury would have occurred regardless of whether the accident happened near a trench and that the better view of the accident was that plaintiff had simply lost his balance on a slippery level surface. The dissent’s logic resulted in the further statement that plaintiff's claim under Labor Law § 241(6) should also be dismissed.
Over a two-judge dissent, the First Department affirmed summary judgment in favor of the plaintiff under Labor Law § 240(1). The majority concluded that plaintiff was entitled to a safety device under the Labor Law and that the failure to provide one was the proximate cause of plaintiff’s injuries. By contrast, the dissent argued that the injury would have occurred regardless of whether the accident happened near a trench and that the better view of the accident was that plaintiff had simply lost his balance on a slippery level surface. The dissent’s logic resulted in the further statement that plaintiff's claim under Labor Law § 241(6) should also be dismissed.
Tuesday, October 25, 2011
Lippman Court Further Expands Labor Law 240(1)
Last year, we highlighted the First Department's decision in Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. In this case, the First Department held that the collapse of pipes standing on the floor, like the collapse of a wall, does not give rise to a Labor Law Sec. 240(1) claim. The Court reasoned that because the pipes and plaintiff "'were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability pursuant to Labor Law § 240.'"
Today, the Court of Appeals, in a 4-3 decision, modified, holding that there is no categorical exclusion to Labor Law Sec. 240(1) for injuries caused by falling objects that are at the same level as the plaintiff at the time of the accident. In doing so, the Court of Appeals eliminated an exception that had been well-recognized across the Departments and once again has expanded the reach of Labor Law 240(1).
Relying on Runner v. New York Stock Exch, Inc., the Court held that the issue is "whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Applying that analysis the Court stated that there was a question of fact as to whether the plaintiff's injury was the direct consequence of the alleged failure to provide an adequate safety device. According to the Court, the plaintiff merely asserted, but did not demonstrate, that safety devices could have been used and the defendant asserted, but did not demonstrate, that no safety devices were needed.
The Court also held that the Appellate Division properly denied the defendants' motion for summary judgment on the plaintiff's Labor Law Sec. 241(6) claims, which were premised on 12 NYCRR 23-3.3(b)(3) and 12 NYCRR 23-3.3(c).
Wednesday, October 19, 2011
Court of Appeals Modifies Finding Questions of Fact in Labor Law 240(1) Case
In Grove v. Cornell University, the plaintiff fell 30 feet from the basket of a motorized boom lift. Although the plaintiff was provided with a safety harness and lanyard, he failed to attach it to the basket before he fell. As a result, he fell through a malfunctioning gate on the basket that if properly working would have been self-closing.
The Third Department split 3-2 with the majority concluding that the safety harness and lanyard was an adequate safety device and that the malfunctioning gate was merely the failure to provide an additional redundant safety device. The majority also concluded that the plaintiff was the sole proximate cause of his injuries. The dissent, however, maintained that the defendant failed to establish that the malfunctioning gate was not a proximate cause of the fall, and so neither party had shown entitlement to summary judgment.
On Tuesday, the Court of Appeals modified, holding without discussion, that issues of fact remain on whether there was an adequate safety device and whether the plaintiff was the sole proximate cause of his injuries.
Tuesday, October 11, 2011
Court of Appeals Watch
Today, the First Department granted leave to appeal to the Court of Appeals in Angamarca v. New York City Partnership Hous. Dev. Fund, Inc., where a 3-2 majority of the First Department held that the trial court properly precluded the defendant from raising the issue of plaintiff’s immigration status with respect to damages for future medical expenses. Our full post from June 23rd regarding the case is here.
A More Divided Court
This weekend the New York Times published an article showing that the frequency with which Chief Judge Lippman dissents is markedly higher than either of his two most recent predecessors. In fact, according to the article, Chief Judge Lippman's 15 dissents over this past term nearly matches that of the total number dissents authored by Chief Judge Kaye over her 16 years on the bench. That there has been an increased frequency in dissents under the Lippman Court, however, is not new. Judge Lippman himself has previously spoken about his philosophy at the Court of Appeals. In an article last year year he stated, "I am a result-oriented person . . . and the result I am looking for is not necessarily unanimity.” What this article adds is that according to recent research by Professor Vincent Bonventre, Judge Lippman's dissents reflect his "staunchly liberal" positions regarding the rights of criminal suspects and the injury claims of plaintiffs. It also depicts Judge Lippman as leading a 3-judge liberal minority intent on either making their policy positions known to the Legislature and the public, or influencing future decisions. For the full article click here.
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